Guardianship – authority to act for the care and protection of another

Despite our best laid plans, sometimes things in life just happen. While it may be impossible to plan for every eventuality in our lives, having awareness of resources available to assist us and our loved ones can make unexpected events somewhat less challenging. Some of these resources include guardianship proceedings available through a Probate Court.

What are guardianships? A guardianship is a court oversight proceeding which permits another to make important health care and living placement decisions for another. There are several different types of guardianships, depending on the person in need of assistance:

  • Minor Child Guardianship (relates to the care and protection of a person under 18 years of old when parents are unable or unavailable to act in a parental role);
  • Adult Guardianship (relates to the care and protection of an adult who lack sufficient understanding or capacity to make or communicate informed decisions concerning their health care due to mental illness, deficiency, chronic intoxication, drug use or physical illness or disability); and
  • Guardianship of a Developmentally Disabled Individual (relates to necessary assistance for a person with a developmental disability manifested prior to the age of 22, involving a mental or physical impairment likely continue indefinitely and resulting in substantial functional limitations in major life activities).

Why are guardianships important? Without a Guardianship, persons needing help to administer their personal health or living conditions may not be able to adequately articulate to others their individual needs. A guardian is authorized (and held accountable) for speaking for one who cannot speak for themselves so that one may secure needed health related treatments or living arrangements. Moreover, many healthcare providers require a guardianship or other legal authorization be in place before allowing another (even family members) to communicate concerning the medical treatment of another.

When are guardianships not needed? A guardianship must be necessary before it will be ordered by a court and not all circumstances require court oversight by way of guardianship. For instance, where an adult with some impairments is nonetheless capable of authorizing another to act for them, a Durable Power of Attorney could be utilized to authorize another to speak for them when necessary. Moreover, when a child’s parent may need to leave their child in the temporary care of another, the parent may sign a Parental Delegation of Authority Affidavit authorizing another responsible adult (for up to 6 months) to make important parenting-type decisions concerning their child. Such private authorizations may work just as well as a Court ordered guardianship, but with less formalities and cost. Sometimes, however, more Court oversight may be needed and formal proceedings will be necessary. It is important to speak with your legal advisor to review the best approach needed based on your loved one’s individual circumstances.

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